Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Veldend Jaya Prakash on 2 July, 1996
Equivalent citations: 1996(3)ALD559, 1996(2)ALT(CRI)214, 1997CRILJ196, II(1997)DMC39
JUDGMENT
1. This is State's appeal against the order of acquittal of the respondent who has been convicted by the Additional Judicial Magistrate of First Class, Karimnagar, in CC No. 680/1992, dated 13-8-1992 under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, but acquitted by the appellate Court.
2. It is no longer in dispute before me that A1 is the husband of the de facto complaint PW 1. He married her on 12-3-1988 in Karimnagar. The acquitted-accused A2 is the father while the acquitted-accused A3 is the mother of the accused, A1. The prosecution witness PW 2 is the father of PW 1.
3. Put briefly, the prosecution case is that at the time of marriage, the accused A1 and his parents, that is the accused A2 and A3 were paid a dowry of Rs. 2,50,000/- including the prices of gold, house site and scooter in pursuance of the agreement Ex. P-8, dated 7-2-1988. After the marriage at Karimnagar, on 17-3-1988 (1st visit), PW 1 went to Husnabad to stay with her husband A1 and in-laws since acquitted. She stayed there for about a week. During her stay her husband, A1, who was studying in Medical College in Warangal, demanded additional dowry of Rs. 76,000/-. His parents supported the demand for additional dowry. The accused A1 and his parents harassed PW 1 and taunted her that had A1 been married to medico, he would have obtained a dowry of Rs. 4 to 5 lac. Then she was sent to her father's house with a warning that she should return with the additional amount of dowry demanded and they know how to extract the same. After staying for about 10 days with her father PW 2, the de facto complainant PW 1 returned to the house of the accused A1 (2nd visit) and stayed with all the three accused persons for two or three days. But, she was again driven out of their house because she did not bring additional dowry. After about 2-3 months, she again went to stay with the accused persons (3rd visit). The acquitted accused persons A2 and A3 asked her as to why she did not bring the gold ornament and beat her. She narrated the incident to PW 3 who had settled her marriage with the accused A1. After sometime, the accused A1 and A3 took her to her father's house to verify whether the gold ornaments were safe with her father PW 2 or not. PW 2 when asked handed over the gold ornaments to her and paid some cash to A2 and then they returned to Husnabad (4th and last visit) on the same night, that is to say on 4-1-1989. On reaching their house, all the three accused persons forcibly snatched all the ornaments and beat her with hands. On her raising a cry, PW 8, who is a neighbour, came there and witnessed the incident. On the next morning, that is on 5-1-1989, A1 took PW 2 to her village Karimnagar and left her at Kaman where her Karimnagar and left her at Kaman where her neighbour Adi Mellaiah, PW 7, and one Kumaraiah met her. She narrated the story to them and they reached her to her father's house.
4. The accused A1 also wrote letter, Ex. P1 to P5, wherein he has demanded additional dowry from PW 2. A Panchayat was convened on 3-6-1990 wherein PWs. 4, 5 and 6 were present to settle the dispute between PW 1 and the accused persons, who sought time to keep PW 1 with them, but later they did not do so on one pretext or the other. Ultimately on 30-8-1990, she filed a written report Ex. P7 against the accused persons for practising cruelty on her and demanding additional dowry.
5. After investigation, the police charge-sheeted the accused A1 and A3 in the Court of the Additional Judicial Magistrate of First Class, Karimnagar, who framed charges under Section 498-A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961 against them. The accused persons denied their guilt and examined DW 1 in defence.
6. The learned trying Magistrate on assessment of the evidence on record convicted A1 under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and sentenced him to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 2500/- and in default to undergo rigorous imprisonment for a period of three months on the first count and sentenced him to rigorous imprisonment for a period of six months and also to pay a fine of Rs. 2000/- and in default to undergo rigorous imprisonment for a period of four months on the 2nd count.
7. Feeling aggrieved by the judgment of conviction, A1 preferred criminal appeal No. 64/92 and the I Additional Sessions Judge, Karimnagar, vide judgment dated 23-11-1994 acquitted A1 of the aforementioned charges levelled against him.
8. Feeling aggrieved by the judgment of acquittal, the State has preferred this appeal.
9. I have heard the learned Public Prosecutor on behalf of the State as well as Sri K. Raja Reddy learned counsel of the respondent-accused.
10. Before proceeding further, it would be beneficial to reproduce the following passage from the case of Ashok Kumar v. State of Rajasthan, "Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanor of witnesses and interference should not be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless."
11. Further, the Apex Court in the case of Ramesh Babulal Doshi v. State of Gujarat, has held (at P. 2869 of Cri LJ) :
"This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusions that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
12. PWs. 1, 2 and 3 have stated in one voice that the respondent was paid an amount of Rs. 250000/- at the time of marriage. Out of this amount Rs. 80000/- was paid in cash and other articles namely 20 tulas of gold and a Bajaj Scooter etc., were given at the time of marriage. PW 5 has also stated that in the Panchayat PW 2 told the panchas to have paid an amount of Rs. 85,000/- to the respondent-accused A1.
13. The learned appellate Court rejected the testimonies of PWs. 1, 2 and 3 on the ground that though PW 1 has stated that the amount of Rs. 85,000/- was paid at the time of her marriage, but in cross-examination she has stated that it was not given in her presence. It rejected the evidence of PWs. 2 and 3 on the ground that first they stated that Rs. 85,000/- was paid in cash and 20 tulas of gold and one house plot of 3 guntas were given at the time of marriage, but later PW 2 stated in his deposition that the said amount of Rs. 85,000/- was paid at the time of betrothal and then changed his version and said that it was paid even before fixation of the marriage and drawing lagnapatrika, Ex. P8, dated 7-2-1988. There is addition of more articles in the complaint Ex. P7 when compared with the lagnapatrika Ex. P8. there is also no definite evidence as to whom out of the three accused persons, that is to say the accused A1, or A2 or A3, the dowry was paid. The appellate Court also took into consideration that PW 2 was equally liable for giving the dowry along with the respondent-accused A1. PWs. 1 and 2 first stated on oath that a house plot was given, but later changed their version and said that cash in lieu of the house plot was subsequently paid to A1. The third item of gold of 20 tulas was presented to PW 1 and not to the respondent-accused A1.
13A. I get from the evidence of PWs. 1 and 2 that the respondent-accused A1 had written letters Ex. P1 to P4 to PW 1 and the letter Ex. P5 dated 13-8-1988 to PW 2. The evidence of PWs. 1 and 2 on these letters of the respondent-accused A1 has not been denied during their cross-examination. Thus, it is established that the respondent-accused A1 had written the letters Exs. P1 to P4 to his wife PW 1 while he sent the letter Ex. P5, dated 13-8-88 to his father-in-law, PW 2.
14. A reading of letter Ex. P3, dated 14-6-1988 shows that the money received at the time of marriage Rs. 85,000/- has been spent and in the same letter the respondent-accused A1 has given the breakup of the amount of Rs. 85,000/- spent by his father. The learned appellate Court has not at all considered the letter Ex. P3 in which there is a clean breast admission of the respondent-accused A1 that an amount of Rs. 85,000/- was paid to him and his family members at the time of his marriage by PW 2. This clinches the issue. Even if there are contradictions regarding the time etc. when the amount was paid by PW 2, but those contradictions appear to be minor particularly in the light of the aforementioned contents in Ex. P3 which had been written by the respondent-accused A1, to PW 1. Under these circumstances, the question of capacity of PWs. 1 and 2 to pay the amount of Rs. 85,000/- also loses importance. The finding recorded by the appellate Court that the prosecution has failed to establish that Rs. 85,000/- was paid as dowry appears to be totally wrong and erroneous. Even otherwise, there appears to be no need to discuss the passing of dowry of Rs. 85,000/- for the simple reason that the trying Magistrate has not charged the respondent-accused A1 for receiving the dowry of Rs. 85,000/- at the time of his marriage with PW 1.
15. PW 1 has testified that A1 had demanded additional dowry of Rs. 76,000/- during her first visit. PW 1 has deposed that A1 in his letter dated 13-8-1988 which is at Ex. P5 had demanded the balance amount of Rs. 26,000/-. PW 5 has stated on oath that A1 had told him about the dowry problem that his demand for scooter has not been complied with. PW 2 also informed the panchas that he had paid a dowry of Rs. 85,000/- to A1, but as there was a demand for additional dowry which he could not pay, PW 1 was not taken by the accused.
16. The learned appellate Court rejected the evidence of PWs. 1, 2 and 5 on the ground that according to PW 3 in the Panchayat PW 2 did not inform the Panchas that he had already paid the dowry as promised, but the accused persons were still demanding additional dowry while PW 5 has stated that PW 2 did say about the dowry paid as also regarding the demand for additional dowry to the Panchas. Thus, there is mutual contradiction between the evidence of PW 3 and PW 5 while PW 6, who is the caste elder and one of the Panchas, did not say a word during his examination regarding the demand of dowry or demand for additional dowry. The evidence of PWs. 1, 2, 3, 7 and 8 who have spoken about the cruelty practised by the respondent and his parents, has been rejected by the 1st appellate Court on the ground that PW 1 did not tell her father about the cruelty practised on her and demand of dowry, till 13-8-1988, that she wrote the letters, Ex. D1 to D27 to A1 demanding money for her personal expenses as also for establishing an establishment at Warangal, but did not complain about the alleged cruelty practised on her or the demand of dowry and that she lodged the report Ex. P7, only after coming to know that A1 has filed an application for restitution of conjugal rights against her, after a period of about 20 months from the date of her alleged ejectment from his house on 4-1-1989. The learned appellate Court has found that PW 3 is a friend of PW 2, PW 4 is a friend of the brother-in-law of PW 1 while the daughter of PW 7 is a friend of PW 1 and PW 8 is his enemy.
17. I get from the evidence of PW 1 that she stayed for a total period of 20 days during her married life in the house of A1 and she left finally the house of A1 by 10th or 11th June or July, 1988. Under these circumstances, the claim of PW 3 that in the month of April, 1988 PW 1 narrated about the misbehaviour of A1 and his parents to him in her house appears to be improbable particularly when he did not narrate the said incident to his friend PW 2 on his return of Karimnagar from Husnabad as also the fact that he did not question the parents of the accused A1 regarding the alleged misbehaviour though they were present according to him at the relevant time in their house. He is the witness who has settled the marriage and, therefore, his keeping mum makes his conduct abnormal and statement doubtful. Similarly, the statements of PWs. 1 and 2 that on 4-1-89 ornaments were handed over by PW 2 to the acquitted-accused A2 in his residence and PW 1 was taken to the house of A1, but on the same night, the ornaments were forcibly snatched and the next morning she was reached upto Karimnagar from where she was taken to the house of PW 2 by PW 7 do not inspire confidence because according to PW 1 she had finally left the house of the accused A1 in the month of June or July, 1988 which appears to be correct because according to her A1 has written letters to her dated 19-5-1988 which is at Ex. P1, 27-5-1988 which is at Ex. P2 and 14-6-1988 which is at Ex. P3. The second reason is that she wrote letter Ex. D1 and 12-1-1989 to A1, but there is no whisper in this letter regarding the incident of beating, snatching and driving her out of the house of A1 against him and his parents. Had the incident been true, there appears to be no reason as to why she did not mention about the same in the letter Ex. D5 which was sent by her within eight days from the date of alleged incident of alleged incident of 4-1-1989. This material omission belies the statement of PW 1 and PW 2 as also the other witnesses. The third reason is that PW 8 bore animosity with A1 because his father had purchased his house which was mortgaged for Rs. 30,000/- with him for half of the amount only and he claims to have witnessed the incident in the night of 4-1-1989 by standing on the road only.
18. For the foregoing reasons, agreeing with the learned appellate Court, I reach the conclusion that the prosecution has failed to established that A1 had driven her out of the house during her second visit or had snatched the ornaments on 4-1-1989 and beaten her and on the next morning, that is on 5-1-1989, had reached her upto Karimnagar and left her there to her fate.
19. As noted above; PWs. 1 and 2 have stated that during the first visit of PW 1 to the house of A1, a demand for additional dowry of Rs. 76,000/- was made. On 13-8-1988, A1 had written a letter, Ex. P5, to PW 2 English translation of which is reproduced below.
"Warangal, D/-13-8-88.
To respectful father-in-law, Jayaprakash writing with salutations that -
The amount of Rs. 26,000/- due to me from you and scooter may be given to me urgently. My father desired that I should collect the amount myself. So give me the money to me. I am feeling very inconvenient for money here. To purchase books I require urgently Rs. 6,000/- now. So get the money and come soon. Also scooter may be given now. If not I will not be responsible for consequences.
Yours, Sd/-
(V. JAYA PRAKASH) I learnt driving scooter.
I do not have any money."
The learned appellate Court discussed the said letter Ex. P5 in Para 27 of his judgment, but did not rely on this letter on the flimsy ground that it has not been mention in this letter whether A1 had demanded additional dowry or the balance amount of dowry and that according to PW 2, the entire amount of Rs. 85,000/- was paid and no amount of dowry was left to be paid, therefore, it cannot be said that the amount demanded in Ex. P5 was the balance amount of dowry, that A1 had written to PW 1 on 27-5-1988 vide Ex. P2 that he was not shown courtesy, during his visit, by PW 1 and her father and that PW 1 had demanded money from A1 vide letters D1 to D27.
20. There is evidence on record that PW 1 had lost her mother and the treatment of her step-mother was not good towards her. She was examined on 18-6-1991 and her age was estimated to be 22 years. Thus, her age in the year 1988-89 appears to be between 19 and 20 only. In the Indian setting, a girl who is not treated well by her step-mother, if desires to have a matrimonial home where she may live with her husband peacefully, writes some letters, making a request for a separate establishment and demanding some money to meet her out of pocket expenses, particularly when her father was indebted, cannot be made a ground to reject her testimony in toto, only because she expected something from her husband. As noted above, the learned appellate Court rejected the letter Ex. P5 on baseless ground. A reading of letter Ex. P5 shows that a demand of Rs. 26,000/- as also a scooter was made and PW 2 asked to pay at least a sum of Rs. 6,000/- immediately and to provide a scooter or else he would not be responsible for the consequences and this establishes that a demand for additional dowry in the shape of a cash amount of Rs. 26,000/- and a scooter was made and PW 2 was also told indirectly regarding the consequences in case he committed a default. Under these circumstances; merely because PW 1 did not tell her father about the demand of additional dowry prior to the receipt of letter Ex. P5, dated 13-8-1988 does not make her testimony doubtful.
21. Witnesses cannot be branded as liars in toto and their testimony cannot be rejected outright even if some part of their statements are demonstrably incorrect or doubtful because the grain of acceptable truth from the chaff of exaggerations and improbabilities, which cannot be safely or prudently accepted and acted upon, can be separated. It is sound commonsense to refuse to apply mechanically in assessing the worth of necessarily imperfect human testimony; the maxim 'falsus in uno, falsus in omnibus' vide Laxman v. State of Maharashtra, .
22. It is pertinent to note that no attempt on behalf of A1 has been made to explain the circumstances under which the demand in Ex. P5 was made, except that in earlier A1 has shown affection towards PW 1. True that in letters Ex. P1 to P4, the respondent-accused A1 has directly not claimed the dowry, but has given the account of the expenditure of dowry of Rs. 85,000/- and has explained his adverse circumstances as also the nature of his parents. From the contents of Exs. P1 to P4, all that can be said is that he did not practise cruelty or harassed PW 1 during her stay with him, but that does not justify the demand of Rs. 26,000/- and a scooter from PW 2 who is the father of PW 1, and that too with a warning.
23. Due to oversight, the aforementioned material and important fact has been summarily dismissed by the lower appellate Court on palpably wrong and erroneous grounds and, therefore, disagreeing with the learned appellate Court, I reach the conclusion that the entire approach of the learned appellate Court in dealing with the evidence regarding the demand of dowry is wholly untenable.
24. The word harassment has not been defined in Section 498-A of the Indian Penal Code. The meaning of the word 'harass' in the Webster's Dictionary reads thus :
"to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness."
Clause (D) of the explanation to Section 498-A of the Indian Penal Code shows that the harassment of the woman where such harassment was with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or was on account of the failure of her or any person related to her to meet such demand would amount to cruelty for the purposes of Section 498-A of the Indian Penal Code vide Wazir Chand v. State of Haryana, .
25. I have found that the prosecution has failed to establish that the respondent-accused A1 has subjected PW 1 with physical cruelty. As far as the question of harassment is concerned, it is interesting to note that PW 1 has not stated a word in her whole deposition that on account of the demand of dowry or additional dowry, she was mentally disturbed. On the other hand, I get from the letters written by her particularly on 12-1-1989 which is at Ex. D5, on 7-3-1989 which is at Ex. D4, on 29-6-1989 which is at Ex. D3 and on 22-6-1990 which is at Ex. D2 that she has shown love and affection for A1 and she has not mentioned in these letters that on account of the demand of dowry or additional dowry she is worried or depressed. Under these circumstances, it cannot be said that merely because the dowry was demanded by A1, the de facto-complainant PW 1 was put to harassment.
26. For the foregoing reasons, the contention of the learned Public Prosecutor cannot be accepted that the respondent-accused A1 had harassed PW 1 or PW 2 with a view to coercing them to pay the amount of dowry of Rs. 26,000/- and a scooter. But, the respondent did demand a dowry of Rs. 26,000/- and a scooter in connection with his marriage with PW 1, particularly by letter Ex. P5.
27. In the case of State of Himachal Pradesh v. Nikku Ram, , the Apex Court has observed (Para 1) :
"Dowry, dowry and dowry. This is the painful repetition which confronts, and at times haunts, many parents of a girl child in this holy land of ours where, in good old days the belief was 'where woman is worshipped, there is abode of God.' We have mentioned about dowry thrice, because this demand is made on three occasions : (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture of the girl, leading to either suicide in some cases or murder in some."
True, that the respondent-accused A1 is a Doctor, but it is shocking to note that he, for reasons best known to him, in spite of directly showing love for PW 1 in his letters i.e. Exs. P1 to P4 in directly demanded a dowry of Rs. 26,000/- and a scooter and looking to the fact that the offence of dowry is a steeprise, no leniency can be shown to such a greedy person.
28. In result, the appeal is partly allowed. The judgment of acquittal of the respondent-accused under Section 498-A of the Indian Penal Code is maintained, but the judgment of acquittal of the respondent-accused under Section 4 of the Dowry Prohibition Act, 1961 is set aside and the judgment of conviction and sentence passed by the trial Court, that is to say conviction under Section 4 of the Dowry Prohibition Act, 1961 and sentence of rigorous imprisonment for a period of six months and a fine of Rs. 2,000/- and in default to undergo further rigorous imprisonment for a period of 4 months, is restored. The respondent shall immediately surrender himself before the trying Magistrate to suffer the sentences imposed on him and in case of default, the trying Magistrate is directed to issue a warrant of arrest against him and to send him to jail to suffer the sentences imposed on him. The respondent, if had remained in jail during the period of investigation and trial, then, that period would be adjusted against the aforementioned rigorous imprisonment of six months under Section 428 of the Code of Criminal Procedure.
29. Appeal partly allowed.